Will & Estate Planning - What if I don't have a will?

If you die without making a valid will, you leave what is known as an "intestacy". This means you have not validly disposed of some or all of your assets.

If you die without a will, your assets will be distributed according to a legal formula. This might mean that your assets do not end up with the person you would have chosen. It also means that you have no control over who distributes your assets.

Even if you’re happy to have your assets pass according to the law, consider the possibility that people you never intended to benefit may end up with part of your estate. As lawyers sometimes say, “where there’s a will there’s a family; where there’s no will there’s still a family!”

For instance, if you don’t have children and die together with your spouse, a relative you repeatedly bailed out of substantial debts may be rewarded because he’s first in line under the intestacy rules.

Wills can be as simple or as complicated as you wish, but your family will always be better off if you have one. Yes, there is legislation in every State and Territory to compensate for your lack of foresight, but like most safety nets it’s a second-best option, by a long way.

What about de factos and their children?

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A de facto spouse is a partner who you treat as your husband/wife, but who you are not legally married to. Sometimes the law will not recognise the legitimacy of a de facto relationship unless the couple have been living in a marriage-like relationship for a minimum period of time.

If you die without a valid will, your de facto spouse may not inherit any of your assets. There are also statutory provisions in some States that limit the definition of a “de facto spouse”. De facto relationships are handled under State laws and include a requirement that the couple lives in a genuine domestic relationship for a prescribed period or have a child together. There have been some dramatic changes in these laws in the last decade, focusing on a more flexible approach including, in some circumstances, the legal recognition of same-sex couples.

This is another good reason why it is important to have a valid will.

As far as your children are concerned, they do not have to be born from a legal marriage to share in the distribution of your assets.

What about lost wills?

This is more common than you may think. Of course you should look very hard for a lost will, including asking the bank and the deceased's solicitor and accountant (and perhaps a trusted friend). It's also worth checking trustee companies placing an advertisement in newspapers or the journal of the law society - this would alert a solicitor who may have made the will.